Putin gambles, everybody loses

Gordon L. Weil

Is Ukraine run by Nazis?

Is Ukraine really part of Russia?

Is Russia back as a great power?

Russian President Vladimir Putin is trying to force his unique and distorted views on the world.  Given his lies that Russia had no intention of invading Ukraine, his claims require close review.  Here’s some context.

Putin charges that Ukraine is run by Nazis. In most Nazi-occupied countries during World War II, some people sided with the Nazis.  That was true from Norway to Poland, including Ukraine, which provided soldiers to fight beside the German army and a compliant government. Maybe that’s the background for Putin’s assertion.

But Putin fails to mention that the Soviet Union, run by Russia and sorely missed by him, had a formal treaty with Hitler that allowed the two countries to carve up Poland.  Russia’s dictatorship today is closer to old-fashioned Nazism than to Ukraine’s democracy.

Then, there’s the Holocaust, the Nazi genocide of six million Jews including Ukraine President Volodymyr Zelensky’s great grandfather and two great uncles.  Zelensky is a Jew. And Putin wants us to believe he’s a Nazi.

Russia deserves a “sphere of influence,” according to Putin.  Despite the Soviet Union having lost control of countries it occupied and oppressed, it should be allowed to dominate them as a way of protecting Russia.

There are at least two problems with his thinking. First, nobody is threatening Russia.  Second, the notion of geographic spheres of influence has faded over the past seven decades.

What Putin may really mean is that, without dominating countries surrounding Russia, his country is no longer the great world power it became after the Second World War.  Its population is less than half than that of the U.S. and Russia’s economy is smaller than California’s. The only vestige of its superpower status is its stockpile of nuclear weapons.

NATO thought Putin got it.  Russia could prosper by acting within international norms.  Disputes would not be settled by force. Putin would not stage a Nazi-style invasion of a neighboring country.  In an earlier column, I accepted that view and suggested that he was only bluffing.

The alliance’s error in dealing with Putin was its failure to punish Russia for seizing Crimea from Ukraine in 2014.  This apparent appeasement probably led him to believe he could take over the entire country without much opposition. Zelensky and NATO have corrected that false impression and given him a nasty surprise.

Russia deserves to control Ukraine, he claims. It is really a part of Russia. They speak almost the same language. Tell that to many Canadians, who make sure they are not mistaken for Americans. Political boundaries have long sliced across common cultures.  People have the right to decide their nationality for themselves.

When the United Nations was established in 1945, the Soviet Union wanted more votes.  So Ukraine (along with Belarus) became a founding member with its own seat at the table.  With the breakup of the Soviet Union, it remained a U.N. member.  Russia had already made it look like a real country.

In the years after World War II, the Cold War pitted NATO, formed to prevent Soviet advances westward in Europe, against the Soviet Union.  In 1991, the Soviet Union collapsed and some optimistically thought the world had arrived at permanent peace.  Nine years later, Putin was in power and he was not ready for peace.

Whatever the outcome in Ukraine, Putin has gambled and his country will suffer.  NATO and the EU have learned that it is dangerous to allow their economies to become overly entangled with Russia’s.  They will likely avoid the risk of remaining dependent on an undependable partner.

While the economic break will cost the U.S. and its allies, it could set the Russian economy back decades.  Without its links with the massive American and European market and investment, it could be forced to depend on China.  To a certain degree, the once great power could itself come within the Chinese sphere of influence.

The Ukraine crisis has prompted worries that Russian success could encourage China to attack Taiwan.  While Taiwan was a part of China, it has evolved into a separation nation.  It is an island located in vital international waterways. 

The American involvement with Taiwan is like its 1991 intervention in Kuwait.  There it had a direct, oil-related interest and sent U.S. armed forces to push out Iraqi invaders.  Now, the U.S. Navy is deployed in the South China Sea.

Facing Nazi Germany, some American Nazi sympathizers formed America First.  Today, Donald Trump and his most ardent right-wing followers adopt the America First name and have expressed support for Putin.

The dangers of appeasing China, with its superpower ambitions, and the overt support by some Americans for foreign despots should be warnings. Been there. Done that.

  

Personal rights vs. public health: individualism reborn as common good fades

 

Gordon L. Weil

Something big just happened in Canada.

It was far more than truckers protesting a vaccination mandate.  It was a message about a fundamental change that seems to be spreading worldwide.

Shakespeare wrote, “There is a tide in the affairs of men.”  What happened in Canada was a sign of the tide turning.

Canada differs from the U.S.  Americans give the highest priority to individual rights.  Canada and some European democracies focus on the common good.

As a result of the global Great Depression of the 1930s and the Second World War of the 1940s, many democracies moved toward a greater emphasis on the common good.  In the U.S., Social Security and the huge war effort moved the country in that direction.

Later, Medicare and Food Stamps would be adopted. Britain’s National Health Service and Canadian national health care were both signs of this change of emphasis. 

After World War II, North American and European economies grew.  As personal wealth grew, citizens more willingly accepted increased government action to care for less fortunate people.

Even on the diplomatic level, the focus on common interests expanded.  The United Nations, NATO and the European Union reflected a willingness to contribute some national political independent action for what was seen as a higher common purpose.

The change was broad and widely accepted, leading to an unspoken belief that the tide had turned.  Society’s values may have changed for good after the Depression.  The political question became not whether to undertake action for the common good, but how far to go. 

The world seemed to be moving in the direction Canada had chosen rather than toward American individualism.  But resistance would grow.

The U.S. began to reverse the tide under the presidential administration of Ronald Reagan in the 1980s.  Mental health care was cut and homelessness grew. Americans were increasingly unwilling to sacrifice their individual progress for collective effort.

The tidal change in attitudes about an enlarged government role, mistakenly called socialism by its critics, finally fully hit under the presidency of Donald Trump. His greatest political skill was in exploiting the growing discontent.  But similar leaders were emerging in places as different as the U.K., Hungary and Poland.

The new wave has been called “populism.”  Many people have become restive with government setting standards, redistributing income and placing limits on their conduct. 

The essence of individual rights is that each person should live as free of governmental restraint as possible.  This freedom should be limited only by the condition that a person’s exercise of their rights should not limit another’s rights, not by a notion of the common good.

Here is the problem with fighting Covid-19.  An article in the latest issue of Scientific American magazine concludes that the virus has hit harder in the U.S. than in other countries because of our putting individualism above the community interest. 

Most people don’t like being forced to wear a mask or have a shot. Protecting themselves at the price of some loss of personal choice should be left to them.  What about the possible effect of their choice on other people, even if it involved their contracting the illness?

Political opposition to Covid-19 protective measures was misplaced when the risks of the virus were high.  Concern about the physical threat may have justifiably pushed aside concern about the sense of isolation and the disruption of public education that resulted.  But that is changing as people seek to regain greater control over their lives.

Progress in dealing with the virus has led to more attention being paid to its social and personal effects.  Government has begun recognizing these costs, while public health officials pursue their necessarily more narrow approach.  Mandates are being relaxed and more responsibility is being left to individuals.

Unfortunately, reasonable consideration of Covid-19 is difficult when it has become highly politicized. The difficult search for a balanced handling of the physical and mental health threats has been packaged as simply a matter of rights and has been taken over by partisan politics.

The struggle for balance has turned into a near war over individual rights versus the common good.  In the U.S., political opposition to even limited protective measures replaces leadership with pandering.  This problem is not limited to the U.S.

The latest sign of the turn of the tide – the trucker’s uprising in Canada – is caused by a belief that individual rights should not only be protected, but that they are absolute.  Any hope of balance disappears when truckers harass you for simply wearing a mask.

The assertion of absolute rights that allow no protection for the rights of others undermines the ability of government to function on any issue.  In the U.S., it contributes to a political divide that seems to be beyond closing.

 

George Washington favored big government, debt reduction

Gordon L. Weil

The president agreed to meet the demands of a ruthless foreign leader rather than to fight back against his aggression.

That’s not “breaking news.”   But it is true.  A U.S. president paid yearly to a despot to reduce attacks on Americans rather than launching a counterattack, because he believed it was the better option.

The president was George Washington.  The nation celebrates his birthday, a legal federal holiday. (“President’s Day” has no official standing.)  As I do every year, I recall aspects of the historic contribution to the country he led.

Three Barbary States in North Africa were high-jacking American and other countries’ commercial vessels and seizing their crews.  The pirate states demanded ransom and annual payments to cease their aggression and return American sailors. Washington strongly opposed paying such tribute.

But Congress would fund only the most limited federal government. Washington favored a larger federal budget that would allow the country to have a navy.  Without one, the U.S. lacked the means to respond to the pirate nations. 

Faced with a choice between a lengthy legislative fight to build the U.S. Navy and abandoning captive Americans or paying ransom, Washington unhappily chose to bribe the enemy.

Much as today, the government was split between two new parties that refused to compromise.  The Federalists backed commerce and a larger government and the Republicans supported agriculture and limited government. Given his stature, Washington hoped to remain above this split but came under attack by Thomas Jefferson’s Republicans.

Though his own views were more closely aligned with the Federalists, he tried to remain independent.  He favored policies that would produce results not political wins.  He risked his reputation and fortunately felt no need to posture to pursue any political ambition.  He was pragmatic, what some today call a “problem solver.” 

His method of governing is missing today.  Politics lack people who seek solutions whatever their parties may favor and are willing to risk political defeat for putting practical solutions above party loyalty.  Washington had the benefit of being a man without a party.

Washington invented term limits. Earlier, when as general he resigned his commission and relinquished power, King George III, his former foe, reportedly said that if Washington could do that, he was the greatest man in the world.  As president, he decided to serve only two terms.  His decision eventually became a constitutional amendment.

He risked being a “lame duck” in his second term, perhaps losing influence because he would soon be gone.  But he could show that he was more committed to doing his job as well as he could than to holding onto to his office and political control. 

Washington was a rare leader. No other elected federal official is subject to term limits. Most members of Congress make political survival their highest priority. Maine’s version of term limits is so weak it amounts to a revolving door.

Along with other historic figures, Washington has been criticized for owning slaves. Though slavery was common during his lifetime, he surely knew it was wrong.  Still, he believed he could not disrupt that “peculiar institution” without tearing the fragile new country apart.  For him, allowing slavery was a pragmatic choice, He knew it could not last.

Unlike others, he tried to keep his slave families intact. Long before any other prominent slave-owning leader acted, he provided that his widow should free his 120 slaves, which Martha Washington did soon after his death.  Slavery was not officially ended for another 65 years.

His life teaches lessons, still valuable today.  His experience with what amounted to an all-volunteer army during the Revolutionary War revealed to him that the U.S. could not become a major world power, able to develop its territory, without a strong, well-financed federal government.

By today’s standards, he would be the target of both parties.  He favored what was considered a large and powerful central government, financed by taxes from the commerce and agriculture it protected and promoted.  He aimed to pay down the national debt and not finance normal government operations by more borrowing.

Perhaps even more important and certainly missing in government today, he sought solutions that would work not merely serve political ends.  Public service was not meant to be a career, but rather to be a way of lending your skills to helping your community for a limited period.

A wit once wrote that politics is about two parties – the “Ins” who want to stay in and the “Outs” who want to get in.  That quip seems never to have been more true than it is now.  That was not Washington’s view of public service.

Regrettably, George Washington’s record as a political leader has faded.  His independent leadership produced results and set an example still worth following. 

World aligns into two blocs over Russia’s Ukraine threat

 

Gordon L. Weil

“War is peace.”

“Freedom is slavery.”

“Ignorance is strength.”

In 1949, George Orwell wrote a cautionary story of a huge nation with these declarations as its mottos.  The novel was called “1984” and it was a somber warning of a possible future world dominated only by ruthless superpowers.

Somewhat surprisingly, the possibility of Russia invading Ukraine has pushed the world closer to a version of Orwell’s view of the future – China-Russia versus America-Europe.

Russian President Vladimir Putin wants to reassert his country’s influence over neighboring nations, replacing the domination by the Soviet Union before it disintegrated in 1991, leaving Russia as its principal survivor.  Ukraine, formerly a Soviet republic, worries him as it moves away from Russian influence.

Massed Russian forces on the Russia-Ukraine border back up Putin’s demand that NATO withdraw its forces from Eastern European countries formerly under Soviet domination and keep Ukraine from joining the alliance. In return, Russia might pull troops away from the border.

By using coercive diplomacy, Putin may have thought he could boost Russian security and regain influence over Eastern Europe.  His threat of war might bring a diplomatic result.  Clearly, this would be a variation on Orwell’s “War is peace.”

He might have assumed that NATO had accepted Russia’s 2014 takeover of Ukraine’s Crimea region.  Though that aggression had spurred the NATO buildup he disliked, he may have thought the alliance was now ripe to be pushed back.

NATO was created in 1949 to counter any new Soviet expansion.  It had grown somewhat slack as Russian pressure faded, but it was refocused by the Crimea invasion.  The Russian military buildup on the Ukraine border brought it fully back to life.

In effect, Putin’s policy may have backfired.  With a relatively small economy and a population increasingly acquiring a middle class lifestyle, he might be limited in launching war.  Frustrated, he turned to China, led by Xi Jinping, who shares his authoritarian views and hostility to the U.S.

The Chinese population and economy are far larger than Russia’s.  Xi could now pick up the support of his weaker and embattled neighbor. They issued a joint statement, which has been dangerously ignored.  It is the China-Russia manifesto for undermining the U.S. as a world power.

Both leaders claim they support democracy, but they say each country can have its own definition of what it means.  For them, it means one-party rule. 

China’s holding Uighurs in what amount to prison camps, supposedly for their own good, is its version of “Freedom is slavery.”  But for Xi, despite saying he supports the Universal Declaration of Human Rights, that’s acceptable.

Orwell defined “doublethink” as the ability to hold two opposing views and believe both of them.  The China-Russia manifesto is full of it.

Apparently Xi and Putin share the belief that the seizure of Crimea has nothing to do with NATO’s current response to the current Russian build-up.   They want to keep world opinion focused on the alliance’s protective moves, not Russia’s aggression.  That’s a new twist on “Ignorance is power.”

Meanwhile, they ignore opposition in the U.S. and most of the West to Russia’s Crimea invasion plus China’s ending of Hong Kong’s democracy and threatening to take over Taiwan.

If the China-Russia manifesto, proclaiming there are “no limits” on their cooperation, means anything, the world has moved closer to the Orwellian struggle between superpowers.  This new alliance directly challenges the western concept of democracy, which requires that every election is decided by the people not by the ruling party.

Orwell’s superpowers had no agendas beyond the Party holding onto power. Democracy is intentionally messy, allowing for disagreement and change.  Yet differences between the U.S. and some European countries in dealing with Russia could produce a better policy than the uniformity of a dictatorship.

Putin may have single-handedly and unintentionally reshaped world politics.  NATO, the alliance of democratic countries aligned against aggression, has been brought back to life.  Russia, receding in superpower status, may have chosen to attach itself to China’s rising star.

The China-Russia manifesto makes a direct appeal to the leading unaligned countries. Brazil, India and Saudi Arabia all have governments leaning toward authoritarian rule.  The manifesto proposes closer relationships with countries that assert their own definitions of democracy and human rights.

The conflict, despite Russia’s saber-rattling, will play out mainly in economic competition. Will national goals be better promoted by the free enterprise that is a feature of democracy or by state economies under authoritarian parties?

The U.S. has lost much of its leadership of the West and its influence on the world economy because of weakened confidence in the dollar and a reduced commitment to NATO.  The China-Russia manifesto is a warning that time is running short to repair the damage.

Demand for ‘most qualified’ judge means ‘no Black woman’

 

Gordon L. Weil

In the celebrated movie “Casablanca,” the police chief makes a show of exclaiming that he is “shocked” to find gambling at Rick’s bar.  He orders it closed just as an officer hurriedly hands him his winnings.

That looks pretty close to Republican criticism of President Joe Biden keeping his campaign promise to nominate an African American woman to the Supreme Court.

Some Republicans suggest his intent is shocking, overlooking anything shocking about their having blocked any consideration of one of President Obama’s nominees and zipping through the review of then-President Trump’s choice of Amy Coney Barrett.  Biden’s choice will likely be confirmed under the GOP’s own short-cut rules, so posturing is the best they can do.

They assert that Biden is playing politics with the appointment instead of picking the most  qualified person available, regardless of race or sex.  Some people are likely to swallow the line that past nominees were selected purely on merit, while Biden is playing politics.

Let’s face it. The selection of Supreme Court justices has always been political.  And throughout history, Obama aside, presidents proposed and the Senate confirmed nominations heavily favoring people like themselves – white men.  In short, sex and race have always been a factor.

Sen. Roger Wicker, a Mississippi Republican, sees it differently.  “The irony is the Supreme Court, at the very same time, is hearing cases about this sort of affirmative racial discrimination and while adding someone who is the beneficiary of this sort of quota," he told an interviewer.  He assumed that any Black woman nominee would have enjoyed affirmative action.

Contrast that statement with the remarks of GOP Sen. Lindsay Graham of South Carolina.  “We’ve only had five women serve and two African American men.  So let’s make the court more like America.”  That’s affirmative action.  Graham has usually accepted the nominees of either party’s president. 

Sen. Susan Collins, Maine’s GOP senator, has said Biden’s promise to pick a Black woman, an appointment she could accept, is unusually “political.” She’s in her fifth term in the Senate and surely knows that judicial nominations are political.  In fact, she rejected Trump’s Barrett rush.  She has merely condemned Biden for being “clumsy.”   

All Supreme Court justices are lawyers.  For most of American history, the political system kept women and African Americans from becoming lawyers. The obvious result was a small pool of possible candidates to draw from, even if there were no discrimination in judicial picks.

Dean Erwin Griswold asked each female member of Harvard Law School first year classes why they were taking the place of a man.  The late Justice Ruth Bader Ginsburg was one of those women and, having become a lawyer, she could not get a job in a law firm.

An American Bar Association report reveals the relative standing of Blacks and women among lawyers and judges.  The numbers tell a story of racism and sexism.

Of all lawyers, 85 percent are white, while 5 percent are Black.  New lawyers are joining the profession in just about the same ratio.

Women are about 37 percent of all lawyers, while 63 percent are men. In law schools today, the division between men and women is about equal.  When Ginsburg was a law student in the 1950s, less than two percent of her classmates were women.

Appointments to the federal courts lag behind the ratio among all lawyers.  In the latest three years for which information is available, 76 percent of those named have been men and 24 percent have been women.  By race, 84 percent of the appointments have been white and 4 percent Black.   

Using the latest 30-year rate of female judicial appointments, it would take about 40 more years until the number of women and men named to federal courts were equal.  Nominations of Black judges are more difficult to forecast because of their limited numbers.

The ABA data also suggest that increases in the number of federal judicial appointments of both women and Blacks have occurred under Democratic presidents Bill Clinton and Barack Obama and the rate has slowed under Republicans George W. Bush and Donald Trump.  That puts Biden’s move in historical perspective.  Elections have consequences.

Wicker forecast: “This new justice will probably not get a single Republican vote.”  Every senator should consider the merits of any nominee. But Wicker was saying that a still unnamed Black woman, whatever her record, could fail to get the support of a single GOP senator.  That’s the reverse of affirmative action.

Would such a denial of even minimal bipartisanship simply be caused by automatic Republican opposition to any Supreme Court nominee of a Democratic president? 

Or would GOP opposition amount to placing a seal of approval on a federal court system that could for many more decades feel the slowly dying grasp of the past?

Government by the people reversed by Senate refusal to act

Gordon L. Weil

In the U.S., somebody always wants to block somebody else from voting.

From the outset, people with property didn’t want average people to vote.  Whites didn’t want blacks to vote and men didn’t want women to vote.

The country is a great democratic experiment, but let’s not get carried away.  Anybody in political control was unlikely to allow others in on it.

But pressure for popular control could not be denied. African Americans got the right to vote, at first only in theory.  The popular vote replaced state legislatures in electing senators. Women gained the right to vote.  Eventually, the country moved toward a political process open to all. It took almost two centuries.

But popular democracy has begun to unravel.   Ironically, the largest turnout in history for a presidential election has unleashed the strongest efforts to turn back the rapid progress made since the passage of the 1965 Voting Rights Act.

From 1933 through 1994, Democrats controlled Congress for all but two years.   To end that control, the Republicans had to take the South away from their rivals and to make it more difficult for Democrats, especially African Americans, to vote.

Opposition to the 1964 Civil Rights Act led many southerners to jump to the GOP.  It expanded historic Democratic efforts to limit access to voting.

While the GOP’s strategy worked, it was thwarted in 2020 by two factors – Covid-19 and Donald Trump.  The virus threatened to keep voters away from the polls, calling for finding ways to help people vote.  Trump’s possible reelection stimulated unusually strong support and even stronger opposition.

Responding to Covid-19, many states expanded mail-in voting, and developed other measures including public drop boxes and more convenient times for voting including at places remote from Election Day polling locations.

Easier access attracted more voters. Nationally, people of each party and other electoral subsets turned out in greater numbers.  While improved access did not favor Democrats, it might have been a factor for them in swing states. 

Since 2020, states under GOP control have cut back on the use of methods easing access.  Early voting dates and polling places have been reduced.  New forms of voter ID are required in some states. Texas even claimed it ran out of voter registration forms due to paper shortages. 

The 2022 congressional elections will take place in newly designed House districts.  GOP-controlled states continue to pack Democratic voters into as few districts as possible.  The Democrats have done the same in a few places, but they have fewer opportunities because they control fewer states.

House elections this year are expected to produce GOP control, caused mainly by voter suppression and the new round of redistricting.  The Supreme Court won’t touch politically driven district design. It’s even tough to get it to look at race effects.

Congressional Democrats have thus far failed to enact federal legislation overriding voter suppression.  Added to reduced voter access, in the wake of the 2020 election some Republican states have moved to control how votes are counted.  

Trump attributed his election loss to corrupt vote counting resulting partly from the use of mail-in ballots.   He complained that mail-in ballots led to vote tampering, because early counts in his favor gave way to wins by Joe Biden after the envelopes were opened.  Repeated reviews, including by Republican officials, found no evidence that Trump’s claims were true.

When he and his backers failed with those claims, they attacked the vote counters.  In Georgia, for example, Brad Raffensperger, the GOP Secretary of State, refused Trump’s request to reverse Biden’s victory.  The GOP-controlled legislature eliminated his election authority in favor of its own designees.  Similar moves occurred in at least seven other states.

The Constitution gives states power over the “times, places and manner of holding elections,” but Congress may override them.  Partisan control of elections could end up giving one party a way to decide on winners, no matter the popular vote.  Democratic efforts in Congress to require multi-party control of the process have failed, thanks to the filibuster and solid GOP opposition.

The January 6, 2021 insurrection tried to force Congress to ignore the official results of presidential elections in some states.  Congress might now amend existing law to ensure that vote counting is purely procedural, just as it has always been.

Republican Sen. Susan Collins is a leader in that effort, which would do nothing more than preserve the historical process.  She has not supported any voter protection.  Independent Sen. Angus King expresses alarm at efforts to reduce popular control.

Faced with stepped-up GOP voter suppression, Democrats need to mount massive get-out-the-vote operations and to launch legal challenges to partisan control of the election process.  The political wars this year could grow even more bitter and hard fought.

  

Divided SCOTUS decides when Congress doesn’t

 

Gordon L. Weil

The U.S. Supreme Court looks like a divided legislature.

Seven of the nine justices expressed their sharply differing opinions in two recent Covid vaccination decisions. Only Chief Justice John Roberts and Justice Brett Kavanaugh, both conservatives, joined in the majority in both cases, and they alone refrained from making a comment.

Despite appearances, the central issue was not Covid vaccination. The rulings were about the role of the federal government and of the Court itself.  They were political, but more about personal beliefs than party affiliation.

The Court decides on what the law means, applying long-established rules of interpretation.  Justices are influenced by their views in applying those rules.  These views may go beyond partisan politics; they may be based on broader conservative or liberal ideology.

Justices making “political” decisions is nothing new.  John Marshall, the early and perhaps the most influential chief justice, favored a strong federal government. Between 1801 and 1835, his decisions always promoted this objective, aimed at influencing the young nation’s political development.

In both recent Court decisions, conservatives and liberals each expressed their political judgments.  All agreed on the serious threat to public health and the high personal cost of Covid-19, but that’s all.

In one case, six conservative justices interpreted the law narrowly, ruling that Congress had not given the Occupational Safety and Health Administration the power to require vaccinations in large companies.  They opposed an administrative agency exercising broad power without clear congressional approval.

Congress itself might have adopted such a mandate or given OSHA that explicit power. In effect, the Court found that Congress could have acted, but didn’t.  The Court has decided in major cases, like Roe v. Wade, when Congress didn’t, but this time the majority would not fill in the blank.

The three liberal dissenters had no doubt that Congress had given OSHA the necessary authority.  They concluded that the Covid crisis was so acute that the Court could interpret the law to help halt the spread of the virus.

The second case produced a majority of the three liberals, plus Roberts and Kavanaugh.  A simple majority of five controls the Court.  They ruled that federal funding for hospitals gave the government power to attach conditions, including a vaccination requirement for the medical staff. 

The conservative dissenters opposed a role for the federal government and found no authority for Congress to attach such conditions.  Kavanaugh split from his fellow conservatives and immediately came under blistering right-wing attacks for his independence.

In effect, conservative justices had turned against Marshall, the historic conservative who had promoted a strong federal government. Instead, they asserted that individual states have the power to fight the virus.

Behind its decisions, the Court wrestled with the question of whether Congress was doing its job. Its debate about what Congress meant highlights the failings of the legislative branch, which is supposed to set policy.  It’s no mistake that its powers compose the first Article of the Constitution.

In fact, Congress is not a co-equal branch; it is the first among equals.  Article III assigns the Supreme Court judicial powers, but “with such exceptions and under such regulations as the Congress shall make.”  It can also limit presidential powers.

When it fails to pass laws addressing public issues, Congress leaves it to the president and the Court, increasing their political power.  When the justices are drawn into making major political decisions, the Court’s neutral objectivity may suffer. 

If people believe it is just another political body, its authority can be weakened.  Roberts has been trying to maintain respect for the Court as an impartial body that should stay out of politics.  His positions in the two cases might be intended to reveal his sense of judicial nonpartisanship.

Both decisions were “by the Court” and unsigned. Technically, they did not end the cases, but left the final blows to lower courts.  The Court increasingly uses such quick procedural decisions, known as its “phantom docket” to make major rulings.  Chances for careful consideration among the justices are lost.

The media reported that the result of the decisions was to limit the scope of President Joe Biden’s vaccination policy, which could have political effects on his presidency.  But it paid less attention to the implications of the decisions that went beyond his political fate or even vaccinations.

The ongoing inability of Congress to resolve issues by making tough decisions undermines the democratic system.  Much of the reason is the Senate filibuster, which halts bills by requiring 60 votes to consider them.  Only a simply majority of senators is needed to approve the lifetime appointments of new judges.

If the Court increasingly serves as the federal legislature, then the main purpose of presidential and congressional elections may come down to picking the people who pick the justices.